This case was last updated from Los Angeles County Superior Courts on 06/13/2019 at 02:14:51 (UTC).

ROCHELLE MARMORSTEIN VS COUNTY OF LOS ANGELES ET AL

Case Summary

On 08/16/2016 ROCHELLE MARMORSTEIN filed a Personal Injury - Other Personal Injury lawsuit against COUNTY OF LOS ANGELES. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is GERALD ROSENBERG. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****0909

  • Filing Date:

    08/16/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

GERALD ROSENBERG

 

Party Details

Plaintiffs and Petitioners

MARMORSTEIN ROCHELLE

MARMOSTEIN ROCHELLE

Defendants, Respondents and Cross Defendants

DOES 1 TO 100

LOS ANGELES CITY OF

LOS ANGELES COUNTY OF

MARINA CITY CLUB THE

CS LEGACY CONSTRUCTION INC.

CALIFORNIA STATE OF

ESSEX PROPERTY TRUST INC.

CITY OF LOS ANGELES

THE MARINA CITY CLUB

STATE OF CALIFORNIA

ESSEX MARINA CITY CLUB L.P.

LOS ANGELES COUNTY WEST VWCTOR & VECTOR

WESTERN OILFIELDS SUPPLY COMPANY

ESSEX

COUNTY OF LOS ANGELES

Cross Plaintiff and Defendant

WESTERN OILFIELDS SUPPLY COMPANY

Respondents, Defendants and Cross Defendants

CS LEGACY CONSTRUCTION INC.

LOS ANGELES COUNTY WEST VECTOR & VECTOR-

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

GUZIN & STEIER

GUZIN LAWRENCE NATHAN

Defendant Attorneys

GATES O'DOHERTY GONTER & GUY

FREEMAN ANETA BARBARA

COLEMAN JOHN MICHAEL ESQ.

MCNEIL TROPP & BRAUN

COLEMAN JOHN M.

CHAPMAN GLUCKSMAN DEAN ROEB & BARGER

GATES O'DOHERTY GONTER & GUY LLP

FEUER MICHAEL N. CITY ATTORNEY

Cross Plaintiff Attorney

SANTA ROMANA MARK V. ESQ.

 

Court Documents

Unknown

12/9/2016: Unknown

Answer

12/15/2016: Answer

Answer

1/27/2017: Answer

Unknown

7/13/2017: Unknown

Opposition

7/11/2018: Opposition

Proof of Personal Service

7/13/2018: Proof of Personal Service

Reply

7/17/2018: Reply

Request for Dismissal

8/13/2018: Request for Dismissal

Unknown

9/12/2018: Unknown

Other -

9/21/2018: Other -

Opposition

12/3/2018: Opposition

Request for Dismissal

1/17/2019: Request for Dismissal

PROOF OF SERVICE S&C

12/5/2016: PROOF OF SERVICE S&C

DEFENDANTS' ANSWER TO PLAINTIFF'S FIRST AMENDED COMPLAINT

1/27/2017: DEFENDANTS' ANSWER TO PLAINTIFF'S FIRST AMENDED COMPLAINT

CS LEGACY CONSTRUCTION, INC.'S ANSWER TO FIRST AMENDED COMPLAINT; DEMAND FOR JURY TRIAL

3/1/2017: CS LEGACY CONSTRUCTION, INC.'S ANSWER TO FIRST AMENDED COMPLAINT; DEMAND FOR JURY TRIAL

CIVIL DEPOSIT

6/29/2017: CIVIL DEPOSIT

OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO INTERROGATORIES, SET ONE

9/6/2017: OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO INTERROGATORIES, SET ONE

PLAINTIFF'S NOTICE OF MOTION AND MOTION TO COMPEL A FURTHER RESPONSE TO INTERROGATORIES (SET FOUR), INTERROGATORY NUMBER 2 FROM DEFENDANT CS LEGACY COSTRUCTION, INC.; MEMORANDUM OF POINTS AND AUTHORIT

10/12/2017: PLAINTIFF'S NOTICE OF MOTION AND MOTION TO COMPEL A FURTHER RESPONSE TO INTERROGATORIES (SET FOUR), INTERROGATORY NUMBER 2 FROM DEFENDANT CS LEGACY COSTRUCTION, INC.; MEMORANDUM OF POINTS AND AUTHORIT

203 More Documents Available

 

Docket Entries

  • 06/12/2019
  • Minute Order ( (Case Management Conference)); Filed by Clerk

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  • 05/31/2019
  • OBJECTION TO PLAINTIFF'S CASE MANAGEMENT CONFERENCE STATEMENT; Filed by COUNTY OF LOS ANGELES (Defendant)

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  • 05/30/2019
  • Case Management Statement; Filed by CS LEGACY CONSTRUCTION, INC. (Defendant)

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  • 05/28/2019
  • Case Management Statement; Filed by COUNTY OF LOS ANGELES (Defendant)

    Read MoreRead Less
  • 05/24/2019
  • Notice of Posting of Jury Fees; Filed by COUNTY OF LOS ANGELES (Defendant)

    Read MoreRead Less
  • 05/20/2019
  • at 10:00 AM in Department K; Jury Trial - Not Held - Advanced and Continued - by Court

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  • 05/20/2019
  • Case Management Statement; Filed by Rochelle Marmorstein (Plaintiff)

    Read MoreRead Less
  • 05/15/2019
  • at 09:30 AM in Department K; Final Status Conference - Not Held - Advanced and Continued - by Court

    Read MoreRead Less
  • 05/10/2019
  • Certificate of Mailing for ([Notice of Case Management Conference]); Filed by Clerk

    Read MoreRead Less
  • 05/10/2019
  • Proof of Service (not Summons and Complaint); Filed by Rochelle Marmorstein (Plaintiff)

    Read MoreRead Less
356 More Docket Entries
  • 12/05/2016
  • Proof of Service (not Summons and Complaint); Filed by Rochelle Marmorstein (Plaintiff)

    Read MoreRead Less
  • 12/05/2016
  • Proof of Service (not Summons and Complaint); Filed by Rochelle Marmorstein (Plaintiff)

    Read MoreRead Less
  • 12/05/2016
  • PROOF OF SERVICE S&C

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  • 12/05/2016
  • PROOF OF SERVICE S&C

    Read MoreRead Less
  • 12/05/2016
  • PROOF OF SERVICE SUMMONS

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  • 12/05/2016
  • PROOF OF SERVICE SUMMONS

    Read MoreRead Less
  • 08/16/2016
  • Summons (on Complaint); Filed by Clerk

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  • 08/16/2016
  • COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

    Read MoreRead Less
  • 08/16/2016
  • SUMMONS

    Read MoreRead Less
  • 08/16/2016
  • Complaint; Filed by Rochelle Marmorstein (Plaintiff); ROCHELLE MARMOSTEIN (Plaintiff)

    Read MoreRead Less

Tentative Rulings

Case Number: BC630909    Hearing Date: June 1, 2021    Dept: M

CASE NAME: Rochelle Marmorstein v. County of Los Angeles, et al.

CASE NO.: BC630909

MOTION: Defendants’ Motion to Bifurcate

HEARING DATE: 06/01/2021

BACKGROUND

On January 12, 2017, Plaintiff Rochelle Marmorstein filed a first amended complaint against County of Los Angeles and CS Legacy Construction, Inc. for injuries related to Plaintiff contracting West Nile Virus in the Marina Del Rey Oxford Basin.

On January 7, 2020, Defendant County of Los Angeles filed a motion to bifurcate. On January 23, 2020, Defendant CS Legacy filed a joinder to the motion. On May 18, 2021, CS Legacy filed an ex parte to advance the motion for bifurcation. On May 19, 2021, the Court granted the application and advanced the date of the hearing to June 1, 2021. The Court set the opposition due by May 24 and the reply due by May 27, 2021. The motion is now fully briefed.

LEGAL STANDARD

Upon a properly noticed motion of a party made no later than the close of pretrial conference, a court may bifurcate a trial into separate issues when the convenience of witnesses, the ends of justice, or the economy and efficiency of handling the litigation would be promoted thereby. (Code Civil Proc., § 598.) “The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action, including a cause of action asserted in a cross-complaint, or of any separate issue or of any number of causes of action or issues, preserving the right of trial by jury required by the Constitution or a statute of this state or of the United States.” (Code Civ. Proc., § 1048 (b).) The trial court has the power to sever an action where the interests of justice require. (City of Sacramento v. Superior Court In and For Sacramento County (1962) 205 Cal.App.2d 398, 403.)

“‘Whether separate actions shall be consolidated for trial, or whether there shall be a severance and separate trials of issues in a single action, is matter within the discretion of the trial court.’ (McArthur v. Shaffer, 59 Cal.App.2d 724, 727, 139 P.2d 959, 961; see Code Civ.Proc. § 1048.)” (Mellone v. Lewis (1965) 233 Cal.App.2d 4, 7.)

Analysis

Defendant’s County of Los Angeles and CS Legacy, through its joinder, seeks to bifurcate the issue of liability and damages, trying the issue of liability first, or alternatively, an order for separate trials. Defendants contend that bifurcation will promote a more logical presentation of evidence. Defendants argue that they might be prejudiced without bifurcation because Plaintiff presents as a sympathetic plaintiff and this might improperly sway the jury.

In opposition, Plaintiff argues there is no history and no record of Plaintiff or her counsel ever appealing to sympathy in this action regarding Plaintiff’s harm in any way. Plaintiff further contends that there has been no showing of any prejudice against CS Legacy in this action. Plaintiff also argues that bifurcation will be confusing to the jury.

In reply, CS Legacy argues that this case involves complex facts for both the proposed liability phase as well as the damages phase. CS Legacy argues that bifurcation would preserve judicial economy because it appears that the issue of liability will be resolved against Plaintiff, citing Horton v. Jones In Horton v. Jones, the Court explained:

Section 598 of the California Code of Civil Procedure, [footnote omitted] commonly known as the bifurcated trial rule, provides for determination of the negligence issue at a trial before evidence on the issue of damages is introduced. A principal reason for the rule is set out in Trickey v. Superior Court, 252 Cal.App.2d 650, 653 [60 Cal.Rptr. 761], as follows: “Code of Civil Procedure section 598 was adopted in 1963 as the result of Judicial Council recommendations. Its objective is avoidance of the waste of time and money caused by the unnecessary trial of damage questions in cases where the liability issue is resolved against the plaintiff. (17th Biennial Report, Judicial Council (1959) p. 30; 18th Biennial Report (1961) pp. 56–57; 19th Biennial Report (1963) p. 32; see also Committee on Adm. of Justice Report, 36 State Bar J. p. 416 (1961).)”

(Horton v. Jones (1972) 26 Cal.App.3d 952, 954-955.). The Court agrees that should the issue of liability be decided first it would preserve the parties’ and the Court’s time and resources. If the jury finds that Defendant CS Legacy is not liable for Plaintiff’s injury, the jury will not need to consider damages. Conversely, if the jury finds that Defendant CS Legacy is liable, the jury considers the issue of damages after that determination. Moreover, separating the complex issues involved in the liability the phase from the damages phase would further aid the jury. Therefore, the motion to bifurcate is GRANTED.

Case Number: BC630909    Hearing Date: March 23, 2021    Dept: M

CASE NAME: Rochelle Marmorstein v. County of Los Angeles, et al.

CASE NO.: BC630909

MOTION: MSJ/MSA

HEARING DATE: 03/24/2021

Background

Plaintiff Rochelle Marmorstein filed a first amended complaint against County of Los Angeles and others for injuries related to Plaintiff contracting West Nile Virus in the Marina Del Rey Oxford Basin. The third cause of action is for premises liability against defendants County of Los Angeles, City of Los Angeles, State of California, and Does 75 -100. Plaintiff alleged that “Defendants allowed mosquitoes to breed and thrive at County Marina Del Rey Oxford Basin and plaintiff thereby contracted West Nile Virus.” (FAC ¶ Prem.L-1 at p. 6.) Plaintiff further alleges that this was a dangerous condition of public property. (See FAC ¶ Prem.L-4.(a) at p. 6.) Plaintiff alleges that “The condition was created by employees of the defendant public entity.” (FAC ¶ Prem.L-4.(b) at p. 6.)

Basis for motion

Defendant seeks summary judgment or in the alternative, summary adjudication on the basis that (1) Plaintiff’s cause of action for premises liability is barred by the disease prevention/control immunity pursuant to government code section 855.4 and (2) Plaintiff’s cause of action for premises liability is barred by the design immunity pursuant to Government Code section 830.6. The first issue is based on Defendant’s thirty-fourth (34th) affirmative defense and the second issue is based on Defendant’s fourteenth (14th) affirmative defense. (See First Amended Answer 12/11/2020.)

Legal Standard

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.”  (Aguilar v. Atl. Richfield Co(2001) 25 Cal. 4th 826, 843.)  “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) 

“The supporting papers shall include a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence. The failure to comply with this requirement of a separate statement may in the court's discretion constitute a sufficient ground for denial of the motion.” (Code Civ. Proc., § 437c(b)(1); see also Cal. Rules of Court, rule 3.1350(c)(2) & (d).)

“The opposition papers shall include a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating if the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts the opposing party contends are disputed. Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence. Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court's discretion, for granting the motion.” (Code Civ. Proc., § 437b(b)(3) (emphasis added).)

“On a motion for summary judgment [or summary adjudication], the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.”  (Scalf v. D. B. Log Homes, Inc(2005) 128 Cal.App.4th 1510, 1519.)  The moving party is entitled to summary judgment or summary adjudication if they can show that there is no triable issue of material fact or if they have a complete defense thereto. (Aguilar v. Atlantic Richfiend Co. (2001) 25 Cal.4th 826, 843.)  In analyzing motions for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent's claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

When deciding whether to grant summary judgment, the Court must consider all of the evidence set forth in the papers, except evidence to which the Court has sustained an objection, as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.  (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)   

A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. (Code Civ. Proc., § 437c(f)(1).)

EVIDENTIARY OBJECTIONS

The objection to Exhibit P to the Declaration of Keith Lilley is overruled.

Analysis

Defendant seeks summary judgment or summary adjudication based on its affirmative defenses. The County has the burden to show that the “undisputed facts support each element of the affirmative defense [citations omitted].” (Anderson v. Metalclad Insulation Corp. (1999) 72 Cal.App.4th 284, 289.) Defendant argues that under Government Code section 855.4, the County is immune from all liability concerning its efforts to prevent and control the West Nile Virus. Plaintiff argues that she did not allege that she was harmed by the County’s decisions or actions to prevent and control the West Nile Virus and therefore, immunity does not apply.

Government Code section 855.4(b) provides, “(b) Neither a public entity nor a public employee is liable for an injury caused by an act or omission in carrying out with due care a decision described in subdivision (a).” (Gov. Code, § 855.4(b).) Government Code section 855.4(a) provides, “Neither a public entity nor a public employee is liable for an injury resulting from the decision to perform or not to perform any act to promote the public health of the community by preventing disease or controlling the communication of disease within the community if the decision whether the act was or was not to be performed was the result of the exercise of discretion vested in the public entity or the public employee, whether or not such discretion be abused.” (Gov. Code, § 855.4(a) [emphasis added].)

The Court finds that Defendant has failed to show that section 855.4 applies. Plaintiff’s complaint does not mention that harm resulted from an act or omission of the County that would implicate Government Code section 855.4. Plaintiff only alleged that “Defendants allowed mosquitoes to breed and thrive at County Marina Del Rey Oxford Basin and plaintiff thereby contracted West Nile Virus.” (FAC ¶ Prem.L-1 at p. 6.)

Defendant also argues that Plaintiff’s claim fails because Defendant is entitled to design immunity under Government Code section 830.6. That section provides, in relevant part: “Neither a public entity nor a public employee is liable under this chapter for an injury caused by the plan or design of a construction of, or an improvement to, public property where such plan or design has been approved in advance of the construction or improvement by the legislative body of the public entity or by some other body or employee exercising discretionary authority to give such approval or where such plan or design is prepared in conformity with standards previously so approved, if the trial or appellate court determines that there is any substantial evidence upon the basis of which (a) a reasonable public employee could have adopted the plan or design or the standards therefor or (b) a reasonable legislative body or other body or employee could have approved the plan or design or the standards therefor.” (Gov. Code, § 830.6.)

A public entity “may avoid liability [for a dangerous condition of public property], however, through the affirmative defense of design immunity. (§ 830.6.) ‘A public entity claiming design immunity must establish three elements: (1) a causal relationship between the plan or design and the accident; (2) discretionary approval of the plan or design prior to construction; and (3) substantial evidence supporting the reasonableness of the plan or design.’” (Hampton v. County of San Diego (2015) 62 Cal.4th 340, 342–343 [quoting Cornette v. Department of Transportation (2001) 26 Cal.4th 63, 66].)

For the first element, the public entity “may rely on the allegations of the complaint to establish causation. (See Fuller v. Dept. of Transp. .4th 1109, 1114, 107 Cal.Rptr.2d 823.)” (Alvis v. County of Ventura Defendant argues that it has established the first element of design immunity because Plaintiff contends that because of the tide gate closure, stagnant, non-saline water collected in the Basin, which became a mosquito breeding ground. (UMF 21 [citing deposition testimony and previous filings, but not pleadings, this this case].) Plaintiff, in opposition, argues that she never alleged this in her complaint. In reply, Defendant argues that the Tort Claims Act prevents Plaintiff from alleging a different cause of her injury. Defendant provides a copy of the government claim that Plaintiff made noting that Plaintiff alleged in her government claims that she was injured by the “closing off [of] ocean water to the basin.” (See Reply Medina Decl., Exs. A-B.)

“‘If a plaintiff relies on more than one theory of recovery against the [governmental agency], each cause of action must have been reflected in a timely claim. In addition, the factual circumstances set forth in the written claim must correspond with the facts alleged in the complaint; even if the claim were timely, the complaint is vulnerable to a demurrer [or motion for judgment on the pleadings] if it alleges a factual basis for recovery which is not fairly reflected in the written claim.’ (Nelson v. State of California Lopez v. Southern Cal. Permanente Medical Group Donohue v. State of California

(Fall River Joint Unified School Dist. V. Superior Court Plaintiff’s complaint is limited to the claims submitted in its government claim form. Here, in the original claim, Plaintiff claimed that the County was responsible because the “County created a dangers condition by closing off ocean water to the basin and blocked-off storm drain inlets.” (See Medina Reply Decl., Ex. A.) In the amended claim form, Plaintiff claimed that “Los Angeles County Flood Control District and Los Angeles County Department of Public Works created a dangerous condition by closing off water to the basin and blocked-off storm drains inlets.” (Id., Ex. B.) The claim submitted by Plaintiff does not state that Plaintiff claims that the County is liable for the negligent “execution, the implementation of the [Multiuse Enhancement Project] Agreement” during construction by County and CSL. Since Plaintiff did not base her government claim on this conduct, Plaintiff cannot seek to impose liability on this basis. The Court find that Defendant established the causation element.

“A former [or current] employee may testify to the entity's ‘discretionary approval custom and practice’ even if the employee was not involved in the approval process at the time the challenged plan was approved.” (Gonzales v. City of Atwater (2016) 6 Cal.App.5th 929, 947, as modified (Jan. 10, 2017) [citing Alvarez v. State of California (1999) 79 Cal.App.4th 720, 732].). Another way to establish this element is by presenting “evidence that the engineer who approved the plans had the discretion and authority to do so, and another engineer signed off on the as-built plans.” (Id. at 948; see also Rodriguez v. Department of Transportation (2018) 21 Cal.App.5th 947, 955 [“A detailed plan, drawn up by a competent engineering firm, and approved by a city engineer in the exercise of his or her discretionary authority, is persuasive evidence of the element of prior approval. [Citation omitted]”.) Here, Defendant presents evidence of the second element of this defense. (See UMFs 12-19.) Defendant presents evidence that the County Board of Supervisors approved the Oxford Basin project, and granted the County’s Department of Public Works total discretionary authority over the project including the discretion to proceed with construction, prepare construction documents, award the construction contract to a contractor, etc. (UMF 12 and 15.) In addition, the project manual was designed and approved by the County’s Public Works entity’s licensed civil engineer, Charles Chen. (UMF 14.) Defendant specifically provides evidence that Mr. Chen designed and approved the tidal water control section of the project manual at issue, which required that the tide gate be closed during construction to “prevent[] water from the Marina entering the retention basin at all times.” (UMF 13-14.) In addition, Defendant provides further evidence that the diversion/dewatering plan, which required Legacy (the contractor) to “close and seal the tide valve preventing inflows” during construction was designed by Paul C. Berger, who was another

licensed civil engineer, and Mr. Chen reviewed the plan and approved it after multiple rounds of review and revisions. (UMF 17, 18.) In the opposition, Plaintiff conceded that the County’s Oxford Basin designs were properly approved. (See Opp. at 9:17-18; see also Opp. response to UMFs 12-19.) Here, Defendant has established the second element of its affirmative defense.

The third element -- whether there is any substantial evidence of the reasonableness of the public entity's approval of the plan or design -- is a question statutorily reserved for the court, not a jury.” (Gonzales v. City of Atwater (2016) 6 Cal.App.5th 929, 946, as modified (Jan. 10, 2017) [Citation omitted].)

“The fact of approval by competent professionals can, in and of itself, establish the reasonableness element.” (Higgins v. State of California (1997) 54 Cal.App.4th 177, 187, 62 Cal.Rptr.2d 459, disapproved on another point in Cornette, supra, 26 Cal.4th at pp. 73–74 & fn. 3, 109 Cal.Rptr.2d 1, 26 P.3d 332.) However, “[t]ypically, ‘any substantial evidence’ consists of an expert opinion as to the reasonableness of the design, or evidence of relevant design standards.” (Laabs, supra, 163 Cal.App.4th at pp. 1263–1264, 78 Cal.Rptr.3d 372.)

(Id. at 953–954.) Defendant presents the expert declaration of Keith Lilley. (See UMF 19.) Defendant argues that it has presented sufficient evidence to establish the reasonableness of the design, citing the evidence provided in UMFs 19 – 21. Mr. Lilley provided a reasoned opinion and concluded that: “The construction performed at the Oxford Retention Basin as to control of the tidal water, surface water diversion, and retention basin dewatering substantially conformed to the plans, designs, and specifications of the project manual . . . and approved second revision to diversion/dewatering plan[.]” (See Lilley Decl. ¶ 44, citing Exs. E & K to the Lilley Decl.; see generally Lilley Decl.) In opposition, Plaintiff argues that the Oxford Basin construction had not “substantially conformed to the . . . (designs).” (Citing, RES 20.) Plaintiff also argues that she did not allege that she was harmed due to the tide gates. As stated previously, the Court rejected this argument because Defendant presented evidence that Plaintiff cited the tide gates as the cause of her injury in the government claim. In reply, Defendant argues that Plaintiff’s evidence fails to create a triable issue of material fact. Defendant argues that Plaintiff’s contention that the Basin construction did not substantially conform to the approved plans and specifications was not raised in her operative complaint. (See FAC.)

“[S]ection 830.6 was intended to avoid second-guessing the initial design decision adopted by an employee vested with authority to approve it, except to the extent the court determines that the employee's approval of the design was unreasonable. It is at the reasonableness stage that the court would consider whether an employee, in either knowingly or unknowingly approving a design that deviates from applicable standards, adopted a design that a ‘reasonable legislative body or other body or employee could have approved.’ (§ 830.6.)”. (Hampton v. County of San Diego (2015) 62 Cal.4th 340, 351.) “Generally, a civil engineer's opinion regarding reasonableness is substantial evidence sufficient to satisfy [the third] element.”

(Grenier v. City of Irwindale (1997) 57 Cal.App.4th 931, 941 [Citation omitted]. “That a plaintiff's expert may disagree does not create a triable issue of fact.” (Ibid. [citing Higgins v. State of California (1997) 54 Cal.App.4th 177, 186; Compton v. City of Santee 596–597].)

In this matter, Defendant presented the expert opinion of Mr. Lilley in support of the reasonableness element. (See Lilley Decl. ¶¶ 44-45.) While Mr. Lilley concludes that the design was reasonable, Mr. Lilley does not explain what the applicable standard of care is. However, Mr. Lilley’s declaration is also based on the business records of both Public Works and the Flood Control District. Mr. Lilley provides evidence that Mr. Chen, a licensed civil engineer, approved the plans related to the tidal gate. (See Lilley Decl. ¶¶ 16-22.) The project also required dewatering and water diversion plan, which, after some revisions, was approved by Mr. Chen. (See Lilley Decl. ¶¶ 31-39 [Exhibits J, L, K].). This is sufficient evidence to establish the reasonableness prong. Plaintiff has not presented evidence to dispute the reasonableness prong.

Defendant has met its burden in establishing that there is no dispute of material fact as to its design immunity affirmative defense, therefore, the Court GRANTS Defendant summary adjudication on the second issue.

Case Number: BC630909    Hearing Date: December 11, 2020    Dept: M

CASE NAME: Rochelle Marmorstein v. County of Los Angeles, et al.

CASE NO.: BC630909

MOTION: Defendant County of Los Angeles’ Motion for Leave to File an Amended Answer

HEARING DATE: 12/11/2020

Legal Standard

“The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect.” (Code Civ. Proc., § 473.) California Code of Civil Procedure section 576 also grants the court power to allow a party to amend its pleading.

California courts are required to permit liberal amendment of pleadings in the interest of justice between the parties to an action. (Dieckmann v. Superior Court (1985) 175 Cal.App.3d 345, 352.) Generally, amendment must be permitted unless there is unwarranted delay in requesting leave to amend or undue prejudice to the opposing party. (Duchrow v. Forrest (2013) 215 Cal.App.4th 1359, 1377.) Even if a good amendment is proposed in proper form, unwarranted delay in presenting it may – of itself—be a valid reason for denial. (Emerald Bay Community Association v. Golden Eagle Ins. Corp. (2005) 130 Cal.App.4th 1078, 1097.)

Analysis

Defendant County of Los Angeles seeks leave to amend the answer to add an affirmative defense for the disease prevention/control immunity pursuant to Government Code section 855.4. The County requests leave to amend its answer to assert section 855.4 immunity as the thirty-fourth affirmative defense. Plaintiff opposes the amendment arguing that Defendant intentionally omitted the affirmative defense. However, Plaintiff does not argue that she will be prejudiced by this amendment. Plaintiff has not demonstrated prejudice, and the Court finds no prejudice in allowing the County to assert the proposed affirmative defense. The motion for leave to file an amended answer is GRANTED.

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